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Absence of legal regime contributes to drug abuse
Court Division (Criminal Appellate Jurisdiction)
The Supreme Court of Bangladesh
Badal Kumar Paul (Appellant)
Before Mr. Justice Md Abdur Rashid and
Mr. Justice Siddiqur Rahman.
Date of judgement: March 12th, 2003.
Md Abdur Rashid J: This appeal was presented by the sole appellant Badal
Kumar Paul under section 410 of the Code of Criminal Procedure against
judgement and order dated 13-11-2000 passed by the Sessions Judge at Jessore
in session case No. 39 of 1999. The judgement convicted him under section
19(1) Table 3 (kha) of the Narcotics Control Act, 1990, and sentenced
him to imprisonment for life.
The prosecution case, in short, is that on 5-11-97 at about 9-10 AM the
police found 250 bottles of phensidyl, each contained 100 ml and 72 pieces
of Indian woollen mufflers worth of Taka 32,200 in the possession of the
appellant in front of Mallik Bari at village Tahepur under Chougacha Police
Station, Jessore. The police seized the phensidyl and mufflers in presence
of witnesses and arrested the appellant and lodged a FIR under aforesaid
section of the Act.
In the trial, the appellant along with co-accused Nowsher Ali were charged
under sections 19(1) Table 3(kha), 19(4) and 25 of the aforesaid Act to
which both of them pleaded not guilty and claimed for trial.
The prosecution examined eight witnesses while the defence none. Their
common defence was of innocence and that no phensidyl was recovered from
PW 1 Inspector Sheik Abdur Razzaqe testified that on 5-11-97 he was posted
in the Directorate of Narcotics Control at Circle Benapole. At a tip-off,
he along with ASI Abdul Hannan, Habibur, Harun-or-Rashid, Mohiuddin and
Abdur Rahim reached in front of Mallick Bari at village Taherpur under
Chougacha Police Station and waited in an ambush. At about 8-50/8-55 A.M
they found two persons were coming towards them along the road carrying
jute bag over the head of one. When they reached in front of Mallick Bari,
they came out from both sides of the road and asked them what was inside
the bag. At about 9-00-10-00 AM, by opening the bag they found 250 bottles
of phensidyl in five paper cartons and 72 pieces of woollen mufflers.
They seized the articles in presence of witnesses and sent one bottle
of phensidyl for chemical analysis.
They arrested the appellant Badal Kumar Paul but co-accused Nowsher Ali
managed to flee away. Then, he lodged a first information report under
aforesaid provisions of law.
PW 2 ASI Abdul Hannan, PW 3 constable Mohiuddin and PW 7 constable Harun-or-Rashid
corroborated PW 1 Sheik Abdur Razzak.
PW 4 was a resident of the house near Mallick Bari. He testified that
on 5-11-1997 at about 9-00/9-30 AM he saw people gathered on the road.
He went there. They asked him to sign a paper. He saw the seized articles
inside the car but he did not know what were the articles. He also identified
his signature on the seizure list. He did not see the accused not did
he see the arrest of Badal Kumar with the articles.
He denied that he witnessed the arrest of the accused with the goods and
now, was deposing falsely under the influence of the accused.
PW 5 Raju Ahmed testified that on 5-11-97 he found many people gathered
near Mallick Bari. One official asked him to sign on a seizure list but
he declined. Then, his signature was taken forcibly. He however identified
his signature on the seizure list. At this stage, he was declared hostile
and cross-examined by the prosecution.
In such cross-examination he denied that having witnessed seizure of 72
pieces of mufflers and 250 bottles of phensidly he signed the seizure
list. He denied that he witnessed the arrest of the accused with the goods
and now, was deposing falsely under the influence of the accused.
He stated that it was not true that being neighbour and old acquaintance
of the accused he was concealing the truth.
PW 6 Abdul Awal, a chemical examiner, was posted in the CID, Dhaka. He
stated that on 12-11-97 a sealed parcel was received in the office of
the Narcotics Control Directorate at Jessore from constable Harun-or-Rashid.
In the parcel, 100 ml of liquid was in a glass bottle. He held the chemical
examination. The bottle was found properly sealed and signed. He also
identified his signature. He found Chlorpheniramine Maleate and Codeine
Phosphate in the sample.
Said Sheik Abdur Razzaque was again examined as PW 8 as the investigating
officer. He testified that he investigated the case and after receipt
of the chemical examiner's report he submitted a charge-sheet.
After close of the prosecution evidence, both the accused were examined
under section 342 of the Code of Criminal Procedure and both of them claimed
to be not guilty.
Upon the aforesaid evidence, the learned judge found the appellant only
guilty and accordingly, convicted and sentenced him and co-accused Md
Nawsher Ali not guilty and acquitted him.
We have perused the entire record and heard the learned advocates at length.
We have also examined the Act and Ordinance.
In the trial, seven witnesses were examined. Of them PW 1 to 3, 6 and
7 were police officials while PW 4 and 5 were locals, who witnessed the
seizure by signing their names on the seizure list prepared. PW 2, 3 and
7 in one voice corroborated PW 1 Sheik Abdur Razzaque over seizure of
aforesaid articles. PW 4 and 5 though identified their signatures on the
seizure list but denied to have witnessed any seizure of the articles.
In view of the facts and circumstances of the case and the evidence on
record it did not appear to us that the seizure list witnesses were telling
the truth in the trial. After close scrutiny, we could not find any reason
to take any view different from that of the Adalat that the prosecution
successfully proved the seizure of 250 bottles of phensidyl and 72 pieces
of woolen muffler from the possession of the appellant.
However, no charge was made against the appellant for possession of 72
pieces of woollen mufflers nor do we find any charge of smuggling was
levelled. Both the accused were charged only under item No 3 (Kha) of
the Table following Section 19(1) of the Narcotics Control Act, 1990 for
unauthorised possession of phensidyl. The main issue now facing us is
whether the carrying of the phensidyl is an offence under the Act. More
precisely, whether phensidyl is contraband within the mischief of the
The Act was promulgated with the object to control narcotics and to provide
for treatment and rehabilitation of narcotic (drug) addicts. It is intended
to regulate and control manufacture, marketing, trade, use, etc of the
narcotics as described in schedule-1 to the Act. Section 2 (Tha) of the
Narcotics Act declares the substance or articles described in the first
schedule to the act as narcotics. Schedule-1 comprises of three categories
of narcotics. In Serial 3 of (Ka) class of narcotics, we find mention
of opium derivatives, namely, Morphine, Codeine, Thebaine, Nascapaine,
Narcotine, Papavarine, etc and their alkali.
Sub-section (1) of section 9 prohibits cultivation, production, processing,
carrying, transportation, import, export, supply, purchase, sale, possession,
preservation, storing, exhibition or use of all narcotics except alcohol.
Sub-section (2) prohibits cultivation, production, processing, carrying,
transportation, import, export, supply, purchase, sale, preservation,
conservation, storing, exhibition and use of any substance or plant that
may be used in the manufacture or production of any narcotics.
Sub-section (3) provides, however, notwithstanding anything contained
in sub-sections (1) and (2), any narcotic, substance or plant mentioned
in said sub-sections that is necessary for manufacture of medicine permitted
under any law or for scientific research under the Act can be
(Ka) Produced, processed, imported, exported, purchased, sold, conserved,
stored and exhibited under licence;
(Kha) used under permit
(Ga) carried or transported under permit
Under sub-section 3 of section 9 of the Act, it appears that use of the
schedule narcotics was never intended to be outright banned. Under licence
or permit any of them could be used for manufacture of medicine or scientific
research. Even under clause (Kha) individual use or consumption of such
narcotics appears to be allowed but under permit.
The Act appears to be harsh and the sentence prescribed thereunder is
very severe. Promulgation of the law is no doubt felt and intended for
public health and for the good of the people. In interpretation of such
law, the court is always required to be very conscious of the purport
of the law. It must first have a clear understanding of the schedule narcotics
under the Act, which are prohibited for use, purchase, sale, import, export,
transportation, carrying etc without licence or permit.
At the outset, we must record that we find no mention of phensidyl either
in schedule-I or in the table following section 19 of the Act. Possession
or carrying of such phensidyl therefore cannot be said to be a punishable
offence under the Act.
A bottle containing 100 ml of phensidyl was sent for chemical analysis
and report. PW 6 Abdul Awal, a chemical examiner, deposed that on examination,
he found presence of Chlorpheniramine maleate and codeine phosphate in
the liquid of the bottle. He, however, did not mention the amount or proportion
of any of such substances in 100 ml of the bottle.
Mr Awal submitted that when codeine was prohibited as a narcotic, phensidyl
containing any derivative from such codeine must also be held to be a
schedule narcotic. Possession or carrying of phensidyl is therefore a
punishable offence under serial No. 3 (ka) or (kha) of the table.
In order to understand what is codeine phosphate, we must understand first
what is codeine. Codeine phosphate is no doubt a derivative from codeine.
Codeine is always available in the nature as alkaloid of opium. Such alkaloid
is nothing but a poison just like venom of a snake. A derivative from
any such substance namely, codeine, is extracted by chemical process either
by synthesis or methylation.
Opium and morphine are extracted from a plant popularly known as poppy.
By methylation or chemical process opium and morphine are extracted from
one type of poppy. Both opium and morphine are found as compound. In opium,
presence of codeine is from 0.8 to 2.5% and in morphine 10 to 15%. Codeine
is obtained from morphine through methylation. It may also be obtainable
Codeine phosphate is commonly used as a derivative of codeine. A derivative
is also a compound obtained by methylation or synthesis. Properties and/or
use of derivative of a substance or chemical would be different. Say,
sodium chloride, in chemistry, is written as NaC1, is used in our daily
life as common salt. Sodium and Chlorine in particular proportion make
sodium chloride, which is definitely different from sodium and chlorine.
Neither sodium nor chlorine will individually meet the needs of our common
Similarly, codeine phosphate is a derivative of codeine. In both United
States Pharmacopoeia and British Pharmacopoeia, we find use of codeine
phosphate as medicine in form of tablets, capsules, elixir, injection,
or syrup; (Cf United States Pharmacopoeia, page 416 and 417, Asian Edition,
1995 and British Pharmacopoeia, 1980, Vo1 1 page 122 and 123). An addendum,
1986 of British Pharmacopoeia, 1980 use of codeine phosphate as codeine
linctus. It is described as small colourless crystals or a white, crystalline
Further, we find that under section (iii) of the drug policy declared
in 1982, the use of codeine in any combination was sought to be not allowed
as it causes addiction. But the Drugs (Control) Ordinance, 1982 promulgated
on 11 June 1982 has not included any such prohibition in the use of codeine
phosphate. We find use of codeine phosphate in our country as cough suppressant
in indication of dry or painful cough; diarrheas; pain. We also find use
of Chlorpheniramine maleate as sedative antihistamines(Cf Bangladesh National
Formulary (BDNF), 2001, pages 127 and 129 respectively published by the
Directorate of Drug Administration in association with the Bangladesh
Medical Association and the Bangladesh Pharmaceutical Society). In these
drugs, codeine phosphate is used in prescribed quantity. Say, Codeine
Linctus contains in 5 ml 15 mg of codeine phosphate. Its main use as analgesic;
hypnotic; sedative in medicine. It need not be mentioned that any such
drug may be misused by overuse by exceeding the prescribed limit.
During our research, we found that heroin is also obtained from morphine
and acetyl chloride. Its chemical name is Diacetylmorphine. Its properties
are white, odourless, bitter crystals or crystalline powder; poisonous;
habit forming drug; soluble in alcohol. It is derived from morphine by
acetylisation. It was earlier used in medicine, mainly, as narcotic, analgesic.
Because of its addiction liability, the importation or manufacture of
Diacetylmorphine and its salt is now forbidden in the USA; (Cf Merck Index,
an Encyclopedia of Chemicals and Drugs, Eight Edition, 1968 page 337 and
the Condensed Chemical Dictionary, fifth edition, page 352). Import, export,
transportation, carrying, use of heroin in Bangladesh is also prohibited.
We find in (ka) class of narcotics under schedule-I of the Act amongst
i. Opium poppy or any sticky substance extracted from it;
ii. Refined, unrefined, manufactured opium or any substance made with
iii. Opium derivatives, viz Morphine, Codeine, Thebaine, Noscapaine, Papavarine,
etc. and their alkalis.
iv. Any substance containing more than 0.02% of morphine.
In view of the above categorisation, a decision as to whether any substance
is a schedule narcotic under the Act cannot therefore be said to be divorced
from a consideration of its purity or potency. When a drug is very costly
propensity for contamination cannot also be excluded. In prescribing punishment,
we think, the weight of such narcotic weighed heavily with the legislature.
As Court of record, the responsibility on us is no less little.
Be that as it may, the case in hand is different, not covered by the above
decision. In view of item No. 4 of class (ka) schedule-I of the Act, absence
of any finding of the percentage or quantity of codeine phosphate in 100
m1 of phensidyl has made the submission on behalf of the State altogether
devoid of any substance.
As stated above, codeine as a derivative of opium is included as a narcotic
within class (ka) of schedule-I and violation of any provision of sub-section
(1) or (2) of section 9 of Act in respect of opium, cannabis resign or
narcotics derived from opium is made punishable under serial 3 (ka) or
(kha) of the Table following section 19 of the Act. Notwithstanding the
prohibition, sub-section 3 of section 9 of the Act has allowed use of
any such substance, namely, codeine phosphate, in medicine. Codeine phosphate
is no doubt a derivative of codeine, which in turn comes from opium. In
the absence of any law declaring phensidyl contraband, presence of Chlorpheniramine
maleate and/or codeine phosphate in phensidyl will not make it contraband
as a schedule narcotic. We have already seen both the substances are being
used in medicine as analgesic, antihistamine, cough suppressant etc. even
in our country. Therefore, carrying or possession of the phensidyl seized
is not a punishable offence under serial 3 (ha) or (kha) of the Table
following section 19 (1) of the Act.
Before parting, we must record that the axiom that the ignorance of law
is no defence requires the law, particularly such harsh law claiming life,
should be simple and flawless for easy understanding of the people on
the street. If the Government thinks that use or consumption of phensidyl
is hazardous or harmful to public health, it should come out with proper
legislation. Without the backing of a law, it has got no right to prosecute
and harass a citizen.
In such view of the matter, we do not find any basis for conviction and
sentence of the appellant for possession or carrying of 250 bottles of
In the result, the appeal is allowed. Order of conviction and sentence
is hereby set aside and the appellants are acquitted of all charges levelled
Shamsul Hoque, Advocate for the Appellant. Sk A Awal, Deputy Attorney-General
with Saifuddin Md Aminur Rahim, Assistant Attorney-General for the state.